Monitoring Fundamental Rights in the EU: The Contribution of the Fundamental Rights Agency

289 Pages·2005·0.97 MB·English

by  Philip Alston

MONITORING FUNDAMENTAL RIGHTS IN THE EU
Coherent laws enforced by a central authority are part of the reason why human
rights protection works at the national level in Europe. But when it comes to the
EU these dimensions are lacking. The present system for protecting fundamen-
tal rights emerged on an ad hoc basis, with measures being improvised to
respond to particular problems. In the next couple of years, however, this situ-
ation is likely to change very significantly. The proposed European Constitution
incorporates the EU Charter of Fundamental Rights, and a specialized EU
Fundamental Rights Agency is likely to be established. As a result, the situation
of the EU will more closely resemble that of its Member States. Fundamental
rights will occupy a central role, and coherent and systematic arrangements will
be in place to protect rights, using both judicial and non-judicial means. The
Fundamental Rights Agency, in particular, has immense potential to ensure
effective monitoring of fundamental rights in the EU, and to ensure a unified
strategy for their promotion in EU law and policy.
This volume is the first to critically examine the proposals put forward by the
European Commission in October 2004 on the creation of the EU Fundamental
Rights Agency. Leading scholars in the field of European and international
human rights law analyse the potential significance of this innovative Agency,
and seek to locate it in relation to various other human rights mechanisms, both
in the EU’s constitutional structure and within Member States. They review the
tasks which the Agency could be called upon to perform, and make proposals as
to how it can function most effectively. The relationship of EU law to the inter-
national law of human rights emerging from both the United Nations and the
Council of Europe is examined. The authors also address the challenge of ensur-
ing improved coherence between EU law and the other human rights obligations
undertaken by the Member States. Taken together, these contributions address
urgent questions facing the EU at a time when the central unifying function of
fundamental rights has been recognized but the way forward remains largely
uncharted.

Monitoring
Fundamental Rights
in the EU
The Contribution of the Fundamental
Rights Agency
Edited by
Philip Alston and
Olivier De Schutter
OXFORD AND PORTLAND, OREGON
2005
Hart Publishing
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Contents
Introduction: Addressing the Challenges Confronting the EU Fundamental
Rights Agency 1
Olivier De Schutter and Philip Alston
Part I. The Constitutional Background
1. New Modes of Governance and the Protection of
Human Rights 25
Gráinne de Búrca
2. Mainstreaming Human Rights in the European Union 37
Olivier De Schutter
3. The Relationship between the Agency and the Network of
Independent Experts 73
Martin Scheinin
4. The Agency and National Institutions for the Promotion and
Protection of Human Rights 91
Manfred Nowak
Part II. The Tasks Ahead
5. The Contribution of the EU Fundamental Rights Agency to Civil and
Political Rights 111
Steve Peers
6. The Contribution of the EU Fundamental Rights Agency to Combating
Discrimination and Promoting Equality 131
Christopher McCrudden
7. The Contribution of the EU Fundamental Rights Agency to the
Realization of Economic and Social Rights 159
Philip Alston
8. The Contribution of the EU Fundamental Rights Agency to the
Realization of Workers’ Rights 189
Brian Bercusson
vi Contents
Part III. The EU Fundamental Rights Agency in a Wider Context
9. The Contribution of the Agency to the Implementation in the EU of
International and European Human Rights Instruments 229
Rick Lawson
10. The Contribution of the Agency to the External Policies of the
European Union 253
Mielle Bulterman
Index 279
Introduction
Addressing the Challenges Confronting
the EU Fundamental Rights Agency
OLIVIER DE SCHUTTER* AND PHILIP ALSTON**
H
UMAN RIGHTS DEPENDfor their protection on adequate legisla-
tive and regulatory frameworks, as well as on the possibility of
effective judicial enforcement. They depend on the allocation of
adequate resources. What this collection of essays illustrates is how the realisa-
tion of human rights depends also on appropriate governance mechanisms
designed to ensure that human rights are taken fully into account, especially in
the preliminary stages of policy setting and law-making, and on the participa-
tion of the relevant stakeholders in the design and implementation of these
policies.
This third dimension is of particular importance in the context of the
European Union. The present study of the potential contribution to be made by
a new EU Fundamental Rights Agency not only considers how best it might
perform its work; taking this debate as its departure point, it also identifies,
more broadly, the challenges that face all such agencies in the human rights field.
1. THE BACKGROUND
Towards a Fundamental Rights Agency
In a report prepared for the Comité des Sages responsible for drafting Leading
by Example: A Human Rights Agenda for the European Union for the Year
2000, Philip Alston and JHH Weiler insisted on the need for the establishment
of a monitoring centre for human rights within the European Union.1The main
* Professor at the University of Louvain and Co-ordinator of the EU Network of independent
experts on fundamental rights, Member of the Global Law School Faculty at New York University.
** Professor at New York University, previous Chair of the UN Committee on Economic, Social
and Cultural Rights.
1 P Alston and JHH Weiler, “An ‘Ever Closer Union’ in Need of a Human Rights Policy: The
European Union and Human Rights”, in P Alston, with M Bustelo and J Heenan (eds), The
European Union and Human Rights(Oxford, Oxford University Press, 1999), p 3.
2 Olivier De Schutter and Philip Alston
argument in favor of the creation of such a body was that it could encourage the
Union to adopt a more preventive approach to human rights. The argument ran
as follows: instead of human rights simply being monitored post hoc by the
possibility of judicial review in the event of violation, what was required was a
tool alerting the institutions to the need to address certain issues, where they had
been given the power to do so and where an initiative on their part would be
justified because these issues could not be satisfactorily addressed by the
Member States acting individually, and because the objectives to be achieved
could be better achieved by an initiative adopted at the level of the Union.
“Systematic, reliable, and focused information”, it was then argued, “is the
starting point for a clear understanding of the nature, extent, and location of the
problems that exist and for the identification of possible solutions”.
The Union has moved towards implementing this proposal, albeit using a
remarkably indirect route. In a communcation of 2001 on the Union’s external
human rights policy, the Commission had stated, in answer to a call to follow
upon this proposal, that such an additional supervisory body was not required,
as the Commission “does not lack sources of advice and information. It can
draw on reports from the United Nations, the Council of Europe and a variety
of international NGOs”.2 Although this communication only concerned the
human rights policy of the Union vis-à-vis third countries, many saw in this pro-
nouncement a definitive rejection of the idea. When the Heads of States and
Governments of the Member States of the European Union announced at their
Brussels European Council of 13 December 2003 their intention to extend the
mandate of the EU Monitoring Centre on Racism and Xenophobia3in order to
create a “Human Rights Agency” entrusted with the mission to collect and
analyse data in order to define the policy of the Union in this field, the decision
therefore took most observers by surprise. Indeed, not only was the very pro-
posal for such an Agency unexpected;but the proposal to build on the existing
EUMC, was equally not an obvious one. On the basis of an external evaluation
of the activities of the EUMC between its creation in 1998 and end 2001,4 the
Commission had considered that “the Centre should continue to concentrate on
racism” and that “an extension to other fields would be an unwelcome distrac-
tion within the limits of the resources likely to be available to the Centre and
that it would lead to a weakening of the emphasis on racism”.5In a commun-
2 Communication from the Commission to the Council and the European Parliament, The
European Union’s Role in Promoting Human Rights and Democratisation in Third Countries,
COM(2001) 252 final, p 7.
3 The EU Monitoring Centre was created by Council Regulation (EC) 1035/97 of 2 June 1997
establishing a European Monitoring Centre on Racism and Xenophobia, OJ L 151 of 10.6.1997, p 1.
Based in Vienna, it has a staff of approximately 30 persons. In 2003, its budget was 6.5 million euros.
4 http://europa.eu.int/comm/employment_social/fundamental_rights/pdf/origin/
eumc_eval2002_en.pdf
5 Communication from the Commission to the Council, the European Parliament, the European
Economic and Social Committee and the Committee of the Regions on the Activities of the
European Monitoring Centre on Racism and Xenophobia, together with proposals to recast
Council Regulation (EC) 1035/97, COM(2003)483 final of 5.8.2003.
Addressing Challenges Confronting the EU Fundamental Rights Agency 3
ication of 5 August 2003, the Commission therefore had proposed a number of
amendments to the Regulation establishing the EU Monitoring Centre in order
to improve its effectiveness and the coherence of its tasks.
By announcing the decision to move towards the establishment of a
Fundamental Rights Agency (as the Commission was soon to call it) by extend-
ing the mandate of the EUMC, the Brussels European Council of December
2003 answered the question of what should be done with the EUMC: the answer
was that it should be transformed into something else. That decision however
opened another question, namely what contribution a Fundamental Rights
Agency could make to improving the monitoring of fundamental rights in the
Union, and how that new body should relate to the mechanisms already
existing in the field of the promotion and protection of fundamental rights in the
Union.
It is this question which the essays of this volume seek to address. The authors
examine the present situation of monitoring human rights in the Union and the
possible contribution the Fundamental Rights Agency could make to the human
rights policy of the Union. They address these questions at a particularly
important time. Indeed, five recent and interrelated developments illustrate the
central position fundamental rights have come to occupy in the constitutional
discourse of the Union and in the practice of its institutions. The Charter of
Fundamental Rights has been adopted and shall be incorporated in the
Constitution now proposed for ratification by the 25 Member States. An EU
Network of independent experts in fundamental rights has been established.
The Council may adopt sanctions against, or address recommendations to, a
Member State threatening to breach the values—including respect for human
rights—on which the Union is founded. If and when the Constitution enters into
force, the Union shall have the competence to accede to the European
Convention on Human Rights. Finally, the division of powers between the
Union and its Member States has evolved to the extent that the development of
a fundamental rights policy of the Union has become a genuine possibility,
although the identification of the circumstances in which the Union can and will
use its powers to that effect remains a matter of controversy. Together, these
developments form the background of the debate on the tasks of the future
Agency, and on how it will fit into the institutional landscape. Each of these
developments is significant in its own right, but they are also related to one
another in complex ways.
The Adoption of the Charter of Fundamental Rights
The Charter of Fundamental Rights was adopted at the Nice European Summit
of December 2000, as a solemn declaration from the European Council, the
European Commission and the European Parliament. Though formally a non-
binding document, the Charter was immediately perceived by the commentators